On 2 November 2006, the barge HBC 1000, towed by the tug Nelson River, left the port of Wemindji for that of Poste-de-la-Baleine, in the James Bay region of northern Quebec. On 4 November, the barge sank before completing its journey. Nav Canada (Nav), the owner of a vehicle carried on the barge, was compensated by Allianz Global Risks US Insurance Co (Allianz). They now claim the sum paid to the insured and the deductible from Moosonee Transportation Ltd (MTL) and Expéditions Nordiques DMG Inc (EN). Allianz and Nav claim that MTL and EN, as the carriers and custodians of the goods transported, defaulted on their delivery obligations and were negligent. They argue that the contract between MTL and EN is not enforceable against Nav, since EN must be considered as a carrier. MTL claims that EN is a freight forwarder mandated by Nav and that the MTL-EN contract is therefore enforceable against Nav. Alternatively, MTL submits that it cannot be held responsible, since this is a case of force majeure for which the contract, which is valid under Canadian maritime law, provides for an exemption from liability.

Held: Judgment for the defendants.

The first issue is whether this matter is governed by Canadian maritime law or provincial law. The limits to the traditional privilege of a shipowner to exclude its liability are those imposed by the Marine Liability Act which adopts the Hague-Visby Rules. The Marine Liability Act contains its own standards and its exemption list. Provincial law cannot govern a maritime dispute. It is still appropriate to point out, if only for comparative purposes, art 2070 of the Quebec Civil Code. This article allows a contractual clause of exemption for the owner of a ship, in the event of loss of the goods, when these goods (except for a container) are transported on deck. This specific provision applicable to maritime transport appears at first glance to significantly qualify the scope of art 1474 of the Quebec Civil Code.

The Tribunal finds that NAV, in October 2006, entrusted EN with organizing the transportation of the vehicle from Val-d'Or to Kuujjuarapik. Nav knew that a boat would be used as a means of transport for part of the journey. Nav had been dealing with EN for a few years and was aware of the services that EN offered. EN does not own a boat, plane or truck. The only truck used by EN is the one that it uses in Val-d'Or. EN gets a quote from a carrier and adds its fees or commission. EN disclosed to MTL the name of its client, and MTL clearly identified the latter on its documents. The fact that the vehicle was insured supports the assertion that this policy of EN was known to Nav during the execution of the mandate. In the Tribunal's opinion, EN, according to the facts in evidence, is a freight forwarder. Considering the total absence of communication between MTL and Nav, the latter maintains that it has never been made aware of the terms of the contract and cannot, therefore, be bound by it, for lack of sufficient notification. Nav completely relied on EN for the transport of the vehicle and in October 2006 it was aware that, for the Wemindji-Poste-de-la-Baleine portion, a barge would be used. It is in this context that it instructed EN to make the necessary arrangements for the vehicle to be transported to its destination. In view of this, the Tribunal concludes that Nav is bound by the contract with the carrier MTL and this contract is enforceable against it.

Is this contract subject to the Hague-Visby Rules, thereby limiting MTL's contractual freedom with regard to its liability? The Rules do not apply to goods carried on deck and declared to be so carried in the contract (art 1.c, Sch 3, Marine Liability Act). In addition, examination of the shipping receipt indicates that it is non-negotiable, that no bill of lading would be issued and that the Hague-Visby Rules do not apply. It is internal transport, that is to say with a point of departure in Canada and a point of disembarkation in Canada. Therefore the Rules do not apply.

This means that the contractual relations which govern the parties are those which appear on the shipping receipt. These conditions apply to Nav. The contract also provides, expressly and explicitly, an exclusion of liability, among other things, for goods transported on deck. Nav is aware that there is no road to Kuujjuarapik and does not wish to use air transportation.

Regarding the issue of fault or negligence on the part of MTL, even if the Tribunal does not have to rule on it, certain comments are necessary on the evidence. The evidence does not convincingly establish fault in the loading of the cargo and the resulting weight. The same goes for the maintenance and condition of the barge. The master delayed the departure for several days after assessing the risk related to the navigation conditions. When he decided to leave on 2 November, it is true that the winds were high. But nothing indicated that the conditions, more particularly the waves, would become very difficult and severe to the point of causing the sinking of the barge. That said, the Tribunal is not convinced that this is a case of force majeure. The situation described by the master in his testimony is closer to a peril of the sea than to force majeure.

Carriage of goods on deck has always been subject to a higher risk than other types of maritime transport. The Marine Liability Act recognises this and treats the responsibility of the shipowner differently, by allowing it a contractual freedom, which is limited in other cases by minimum standards of public order. The owner of property who mandates a freight forwarder to organise the transport of the property, unless otherwise specified, authorises the latter to conclude contracts to carry out its mandate. Without necessarily being aware of the contractual clauses negotiated by its agent, it is bound by those terms.